SECOND DIVISION BARNES, P. J., MILLER and RAY, JJ.
NOTICE: Motions for reconsideration must be physically received in our clerk’s office within ten days of the date of decision to be deemed timely filed. http://www.gaappeals.us/rules/
March 6, 2014
In the Court of Appeals of Georgia A13A1757. ASKEW et al. v. ROGERS.
RAY, Judge.
This case arises out of injuries sustained by Earnestine Rogers when she fell
during an attempt to get away from a pitbull owned by Shelah and Eddie Askew.
Rogers filed a motion for partial summary judgment on the issue of negligence
against the Askews, which the trial court granted. Finding that an issue of material
fact exists as to whether the dog was carelessly managed under OCGA § 51-2-7 at the
time of the incident, we reverse the order of the trial court and remand the case for
trial.
Summary judgment is proper “if the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled
to a judgment as a matter of law[.]” OCGA § 9-11-56 (c).
On appeal from the grant of summary judgment, this Court conducts a de novo review of the evidence to determine whether there is a genuine issue of material fact and whether the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law.
(Citation omitted.) Bomia v. Ben Hill County School District, 320 Ga. App. 423, 423
(740 SE2d 185) (2013).
So viewed, the record shows that the Askews had a pitbull that spent most of
its time in a cage located in the back of their house. After arriving home from work
around 4:00 p.m., Shelah Askew let the dog out of his cage for a few minutes and
then placed him back inside the cage and went into the house. Around 7:30 p.m.,
Rogers went on an evening walk in her neighborhood when she passed by the
Askews’ home. As Rogers was passing by the Askews’ yard, she noticed the dog
outside of his cage. Rogers was initially not afraid of the dog because she had seen
him before and he had always been on a leash. Rogers then noticed the dog running
towards her, and she yelled for Shelah Askew, who was coming out of her back door,
to come get the dog. Rogers began to run away, but the dog caught up to her at the
2 end of the Askew’s driveway. The dog jumped up, put his two front paws on her
chest, then slid down, growled at her, and nipped her on her right thigh. During this
time, Shelah Askew ran towards Rogers and called the dog’s name, but the dog did
not obey her. Shelah Askew managed to grab hold of the dog’s collar, and as Rogers
was trying to get away from the scene, she fell in the Askews’ driveway and injured
her wrist.
Shelah Askew deposed that the dog had never before escaped from his cage
and that she was not sure how he had escaped on this occasion, but that it was
possible that she had forgotten to lock the cage’s door. It was undisputed that the dog
was not on a leash at the time of the incident.
Following the incident, an investigator with Animal Control issued a citation
for violation of the Tifton/Tift County Animal Control Ordinance, which the Askews
paid. The Animal Control officer further stated in her affidavit that this was not the
only occasion on which the Askews’ dog had been allowed to roam free, as a few
months earlier the dog “ran out in the street in front of [the officer’s] vehicle causing
[her] to strike it.”
Rogers filed a motion for partial summary judgment as to the issue of
negligence, which the trial court granted, claiming that the Askews violated the
3 applicable animal control ordinance and OCGA § 51-2-7 and, thus, were negligent
as a matter of law. The Askews appeal from the trial court’s grant of partial summary
judgment to Rogers, arguing that an issue of material fact existed regarding whether
the Askews “carelessly managed” their dog. We are constrained to agree.
OCGA § 51-2-7, which governs an owner’s liability for injuries caused by
vicious animals, provides in pertinent part that
[a] person who owns or keeps a vicious or dangerous animal of any kind and who, by careless management or by allowing the animal to go at liberty, causes injury to another person who does not provoke the injury by his own act may be liable in damages to the person so injured. In proving vicious propensity, it shall be sufficient to show that the animal was required to be at heel or on a leash by an ordinance of a city, county, or consolidated government, and the said animal was at the time of the occurrence not at heel or on a leash.
Thus, under this code section, a plaintiff must show that (a) the owner carelessly
managed or allowed the animal to go at liberty; (b) that the animal was vicious or that
the animal was unrestrained at the time and place of the injury in violation of the local
ordinance requiring such restraint; and (c) the animal caused injury. See Hackett v.
Dayton Hudson Corp., 191 Ga. App. 442, 445 (2) (382 SE2d 180) (1989).
4 Rogers contends that the dog was a vicious animal due to the violation of
§14:14 of the Tifton/Tift County Animal Control Ordinance #2004-029, captioned
“Leash Law.”1 However, even assuming that the dog was a vicious animal due to the
violation of the Leash Law, we find that a genuine issue of material fact remains as
to whether either of the Askews were careless in their management of the dog at the
time of the incident. The Askews’ evidence, which must be taken in the best light,
shows that Eddie Askew was not in town on the date of the incident and witnessed
no portion of the incident. It further shows that Shelah Askew let the dog out of his
cage for a few minutes after returning home from work earlier that afternoon.
However, Shelah Askew stated that she placed the dog back in the cage. Although
Shelah Askew opined that it was possible that she accidentally failed to lock the cage
after placing the dog back inside, she further explained that the dog had never
1 Tifton/Tift County Animal Control Ordinance #2004-029, 14:14 provides in pertinent part, as follows: “It shall be unlawful for the owner of any animal . . . to fail to maintain control of an animal or to allow it to run at large unattended on or about the streets, highways, and right-of-way of the County or City[.]” “Control of an animal” is defined in the Tifton ordinance as follows: “(1) On a leash which is being held by a person of sufficient size, age, and maturity to restrain the animal; (2) Under voice control in the presence of a competent person; . . . [or] (4) Within the property limits of its owner or custodian. . .” Id. at § 14-2.
5 escaped from his cage before and that she did not let him out of the cage when the
incident occurred.
Shelah Askew’s speculative statement that it was possible that she had
forgotten to lock the cage is insufficient to show that she was careless in her
management of the dog as a matter of law. In light of the fact that Eddie was
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SECOND DIVISION BARNES, P. J., MILLER and RAY, JJ.
NOTICE: Motions for reconsideration must be physically received in our clerk’s office within ten days of the date of decision to be deemed timely filed. http://www.gaappeals.us/rules/
March 6, 2014
In the Court of Appeals of Georgia A13A1757. ASKEW et al. v. ROGERS.
RAY, Judge.
This case arises out of injuries sustained by Earnestine Rogers when she fell
during an attempt to get away from a pitbull owned by Shelah and Eddie Askew.
Rogers filed a motion for partial summary judgment on the issue of negligence
against the Askews, which the trial court granted. Finding that an issue of material
fact exists as to whether the dog was carelessly managed under OCGA § 51-2-7 at the
time of the incident, we reverse the order of the trial court and remand the case for
trial.
Summary judgment is proper “if the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled
to a judgment as a matter of law[.]” OCGA § 9-11-56 (c).
On appeal from the grant of summary judgment, this Court conducts a de novo review of the evidence to determine whether there is a genuine issue of material fact and whether the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law.
(Citation omitted.) Bomia v. Ben Hill County School District, 320 Ga. App. 423, 423
(740 SE2d 185) (2013).
So viewed, the record shows that the Askews had a pitbull that spent most of
its time in a cage located in the back of their house. After arriving home from work
around 4:00 p.m., Shelah Askew let the dog out of his cage for a few minutes and
then placed him back inside the cage and went into the house. Around 7:30 p.m.,
Rogers went on an evening walk in her neighborhood when she passed by the
Askews’ home. As Rogers was passing by the Askews’ yard, she noticed the dog
outside of his cage. Rogers was initially not afraid of the dog because she had seen
him before and he had always been on a leash. Rogers then noticed the dog running
towards her, and she yelled for Shelah Askew, who was coming out of her back door,
to come get the dog. Rogers began to run away, but the dog caught up to her at the
2 end of the Askew’s driveway. The dog jumped up, put his two front paws on her
chest, then slid down, growled at her, and nipped her on her right thigh. During this
time, Shelah Askew ran towards Rogers and called the dog’s name, but the dog did
not obey her. Shelah Askew managed to grab hold of the dog’s collar, and as Rogers
was trying to get away from the scene, she fell in the Askews’ driveway and injured
her wrist.
Shelah Askew deposed that the dog had never before escaped from his cage
and that she was not sure how he had escaped on this occasion, but that it was
possible that she had forgotten to lock the cage’s door. It was undisputed that the dog
was not on a leash at the time of the incident.
Following the incident, an investigator with Animal Control issued a citation
for violation of the Tifton/Tift County Animal Control Ordinance, which the Askews
paid. The Animal Control officer further stated in her affidavit that this was not the
only occasion on which the Askews’ dog had been allowed to roam free, as a few
months earlier the dog “ran out in the street in front of [the officer’s] vehicle causing
[her] to strike it.”
Rogers filed a motion for partial summary judgment as to the issue of
negligence, which the trial court granted, claiming that the Askews violated the
3 applicable animal control ordinance and OCGA § 51-2-7 and, thus, were negligent
as a matter of law. The Askews appeal from the trial court’s grant of partial summary
judgment to Rogers, arguing that an issue of material fact existed regarding whether
the Askews “carelessly managed” their dog. We are constrained to agree.
OCGA § 51-2-7, which governs an owner’s liability for injuries caused by
vicious animals, provides in pertinent part that
[a] person who owns or keeps a vicious or dangerous animal of any kind and who, by careless management or by allowing the animal to go at liberty, causes injury to another person who does not provoke the injury by his own act may be liable in damages to the person so injured. In proving vicious propensity, it shall be sufficient to show that the animal was required to be at heel or on a leash by an ordinance of a city, county, or consolidated government, and the said animal was at the time of the occurrence not at heel or on a leash.
Thus, under this code section, a plaintiff must show that (a) the owner carelessly
managed or allowed the animal to go at liberty; (b) that the animal was vicious or that
the animal was unrestrained at the time and place of the injury in violation of the local
ordinance requiring such restraint; and (c) the animal caused injury. See Hackett v.
Dayton Hudson Corp., 191 Ga. App. 442, 445 (2) (382 SE2d 180) (1989).
4 Rogers contends that the dog was a vicious animal due to the violation of
§14:14 of the Tifton/Tift County Animal Control Ordinance #2004-029, captioned
“Leash Law.”1 However, even assuming that the dog was a vicious animal due to the
violation of the Leash Law, we find that a genuine issue of material fact remains as
to whether either of the Askews were careless in their management of the dog at the
time of the incident. The Askews’ evidence, which must be taken in the best light,
shows that Eddie Askew was not in town on the date of the incident and witnessed
no portion of the incident. It further shows that Shelah Askew let the dog out of his
cage for a few minutes after returning home from work earlier that afternoon.
However, Shelah Askew stated that she placed the dog back in the cage. Although
Shelah Askew opined that it was possible that she accidentally failed to lock the cage
after placing the dog back inside, she further explained that the dog had never
1 Tifton/Tift County Animal Control Ordinance #2004-029, 14:14 provides in pertinent part, as follows: “It shall be unlawful for the owner of any animal . . . to fail to maintain control of an animal or to allow it to run at large unattended on or about the streets, highways, and right-of-way of the County or City[.]” “Control of an animal” is defined in the Tifton ordinance as follows: “(1) On a leash which is being held by a person of sufficient size, age, and maturity to restrain the animal; (2) Under voice control in the presence of a competent person; . . . [or] (4) Within the property limits of its owner or custodian. . .” Id. at § 14-2.
5 escaped from his cage before and that she did not let him out of the cage when the
incident occurred.
Shelah Askew’s speculative statement that it was possible that she had
forgotten to lock the cage is insufficient to show that she was careless in her
management of the dog as a matter of law. In light of the fact that Eddie was
uninvolved with the dog’s care on the relevant date and in light of Shelah Askew’s
testimony, Rogers has not established as a matter of undisputed fact that the dog
escaped as a result of the Askews’ careless management. “On summary judgment, an
inference cannot be based upon evidence which is too uncertain or speculative or
which raises merely a conjecture or possibility.” (Citation and punctuation omitted.)
Harper v. Robinson, 263 Ga. App. 727, 728 (1) (589 SE2d 295) (2003). See also,
Evans-Watson v. Reese, 188 Ga. App. 292, 293-294 (372 SE2d 675) (1988) (finding,
on appeal from grant of defendant dog owner’s motion for summary judgment, that
dog owner’s testimony that a dog was securely chained behind a closed fence was
insufficient to show as a matter of law that she had adequately chained the dog or
took precautions that the dog would not be inadvertently let out of the yard by others
opening the gate); Hackett, supra at 445 (2) (finding that a genuine issue of material
6 fact existed regarding whether defendant dog owner carelessly managed his dog in
spite of defendant’s affidavit that dog was properly chained up prior to attack).
Accordingly, we find that the trial court erred in finding that the evidence of
record established Roger’s entitlement to judgment as a matter of law.
2. In light of our holding in Division 1, we need not address the Askews’
remaining enumerations of error.
Judgment reversed and case remanded. Barnes, P. J., concurs, and Miller, J.,
concurs in judgment only.